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EB-5 Eligibilities & Requirements: I-526, CPR & I-829


Who are eligible or ineligible to pursue EB-5 case, and what are specific requirements for each type of petition or application?

[Q] I stayed in the U.S. illegally in the past. Am I eligible for EB-5 case, assuming I meet the other requirements?

The nature and the length of your "illegal" stay has to be determined and then evaluated under the U.S. immigration law to determine if you are eligible to immigrate. Therefore, talk to your U.S. immigration attorney.

[Q} What are the basic eligibility requirements of each individual applicant to pursue EB-5 case?

You, as the principal applicant, should probably be at least over 18 years old, not have serious criminal records, past fraudulent visa records, show that you earned the money lawfully.

Aside from the individual eligibility requirements, EB-5 Program and Project have to show that they meet the EB-5 law requirements, but this is not your job, although it should be your concern to choose a specific EB-5 Program and Project which meets the EB-5 requirements and has a good track records.

[Q] My family and I have been in the US in J-1 and J-2 visas. Can we still pursue EB-5 case?

You can file I-526 petition at any time, any where. However, to obtain immigrant visa or I-485 adjustment approval, you and your dependent family members need to show that you are not subject to the 2-year home residency requirement, you satisfied the 2 years home residency requirement or you and your family have obtained a waiver of the 2-year home residency requirement.

[Q] If I had money sitting in my bank account for 5 years, and I used a portion of this money for EB-5 case, will this suffice?

[Q] I would like to know if the following situation would meet the lawful source requirement. Let's say I had 1 Million USD sitting in my bank account for 5 years, and I used a portion of this money for EB-5 case. Will this meet the lawful source requirement?

Yes and no. Yes, it shows that you had the legal control over the money at the time of investing, but you still have to show that you "lawfully" earned that money which has been sitting in your bank account for the last 5 years. However, USCIS is pretty reasonable when it comes to the types of documents that you need to submit to prove that the money in the bank account has been lawfully earned or received.

However, it should be noted that the level of scrutiny that CSC examiners will apply to the lawful source issue varies like temperatures affected by the political mood, etc.

[Q] How do I meet the lawful source requirement of the requisite funds?

The answer and the kinds of documents needed depends on individual facts of the case. Some applicants have an easier time meeting this documents without too many documents, but some need to submit more documents. In this aspect, a U.S. immigration attorney with a lot of experience in having handled EB-5 cases would be a definite plus. However, USCIS takes a "reasonable" approach when it comes to adjudicating the lawful source requirement. Without applying the reasonable standard, many EB-5 cases would not be able to meet the lawful source requirement.

[Q] I am a single mom who did not make substantial money. Can I receive the requisite funds as a gift from my father?

[Q] I am a single mom who did not make substantial money. Can I receive the requisite funds as a gift from my relatively rich father and immigrate under EB-5 Program?

Yes, the lawful source requirement can be met by a gift. However, it still has to be shown that your father lawfully earned the money gifted to you. As to the format of the actual gifting, talk to the qualified U.S. immigration attorney regarding how the gifting should be structured, etc.

[Q] I am a 76-year old man. Can I apply for EB-5?

Under the EB-5 law, there is no age limit to pursue EB-5. In this respect, even though the U.S. EB-5 law has some requirements and restrictions, it reflects the free enterprise philosophy of the U.S. system in that as long as you made the money "lawfully", then there is no age limit, as long as you are above the minimum age to legally enter into a binding contract, which usually is above 18 years old. Of course, the consular officer, during the immigrant visa interview, will make their own determination as to whether you are "mentally capable" or "senile", in which case you will not be issued immigrant visa. In this sense, it's not advisable to crack some off-the-wall jokes with the consular officer, since the officer may determine that you are senile based on your bad jokes. :)

[Q] My spouse and I both have children from our previous marriages. If I do EB-5, can our step-children immigrate with us?

U.S. immigration law permits step-children to immigrate as dependents of their natural parents as long as certain requirements are met. You should consult with a qualified U.S. immigration attorney to evaluate the facts.

[Q] I have a handicapped child. Will this pose a problem in proceeding with EB-5 Program?

[Q] I have a handicapped child. Will this pose a problem in proceeding with EB-5 Program?

In most cases, having a handicapped child will not pose any problem. However, specific nature of the handicap should be explored to see if such handicap will cause a danger to others or require extraordinary public benefits.

[Q] I am currently in the removal proceedings. Can I proceed under EB-5 Regional Center Program in future?

[Q] I am currently in the removal proceedings. Can I proceed under EB-5 Program later on and obtain permanent resident status?

Being in a removal proceedings may deprive you of any future benefits of doing EB-5. Whenever you are in a removal proceedings and you wish to proceed under EB-5, you should promptly consult a qualified U.S. immigration attorney to evaluate the nature of the removal proceedings and how you can terminate the removal proceedings so you can still proceed to do EB-5 Program.